3rd Circ upholds NJ AG ban on giving immigrants' info to fed agencies

(Reuters) - A U.S. appeals court on Monday said former New Jersey Attorney General Gurbir Grewal's directive limiting local law enforcement's cooperation with federal immigration authorities is not preempted by federal law, tossing out a challenge by two counties.

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that because a pair of federal laws that say states cannot prohibit government entities from sharing information on individuals' immigration status do not regulate private actors, they cannot serve as a basis for preemption.

The court upheld a judge's ruling in consolidated lawsuits by Ocean County and Cape May County, who said Grewal's 2019 directive unlawfully impeded enforcement of immigration laws.

Ocean County's lawyers at Berry Sahradnik Kotzas & Benson and the Cape May County Department of Law did not immediately respond to requests for comment. Neither did the AG's office.

Grewal resigned last month to become director of enforcement at the U.S. Securities and Exchange Commission.

The state's acting attorney general, Andrew Bruck, said in a statement that the directive has helped foster trust between law enforcement and historically marginalized immigrant communities.

Bruck said he hopes Monday's ruling "brings an end to this years-long litigation, as we continue doing the hard work of promoting good policing policy."

The directive, first issued in 2018 and tweaked the following year, prohibits counties and local law enforcement from providing personally identifying information, such as Social Security and driver's license numbers, to federal immigration authorities.

Grewal also barred law enforcement agencies from providing equipment, office space, and access to databases to the federal government, as well as access to detained individuals unless they sign written consent forms.

The AG in issuing the directive said it was necessary because individuals are less likely to report crimes or cooperate with law enforcement if they fear being turned over to federal authorities.

The counties in their 2019 complaints claimed the directive was invalid under the Supremacy Clause of the U.S. Constitution because federal law bars government entities from prohibiting any government official from providing information regarding individuals' immigration status to federal authorities.

U.S. District Judge Freda Wilson in Trenton dismissed the consolidated cases last year. She said that because the federal laws cited by the counties only applied to information about immigration status, they did not preempt the AG's directive relating to a more expansive set of information and actions.

The 3rd Circuit on Monday affirmed, but said the counties' claims failed for a more fundamental reason. Preemption only applies to laws that regulate conduct by private actors, and Grewal's directive plainly addresses actions by government entities, the court said.

The panel, however, rejected claims by Grewal's office that the counties lacked standing to sue in the first place because they are political subdivisions of the state that created them.

In many cases, such claims are the only way to ensure that states do not enforce laws that are actually preempted by federal statutes, Circuit Judge Thomas Hardiman wrote.

The 2nd, 5th and 10th Circuits have similarly ruled that states can be sued by their political subdivisions; the 9th Circuit has said they cannot.

Monday's panel included Circuit Judges Thomas Ambro and Peter Phipps.

The case is Ocean County Board of Commissioners v. Attorney General of New Jersey, 3rd U.S. Circuit Court of Appeals, Nos. 20-2754 & 20-2755.

For Ocean County: Mathew Thompson of Berry Sahradnik Kotzas & Benson

For Cape May County: Jeffrey Lindsay of the Cape May County Department of Law

For the state: Jeremy Feigenbaum of the New Jersey Attorney General's office